State v. Allen

• Decision Date: 24 January 1924
• Docket Number: 17680.
• Citation: 128 Wash. 217,222 P. 502
• Parties: STATE v. ALLEN.
• Court: Washington Supreme Court

222 P. 502

128 Wash. 217

STATE v. ALLEN.

No. 17680.

Supreme Court of Washington

January 24, 1924

Department 2.

Appeal from Superior Court, Benton County; Truax, Judge.

O. V Allen was convicted of rape, and he appeals.Affirmed.

Chas W. Johnson, of Seattle, for appellant.

Geo. O Beardsley and G. W. Hamilton, both of Prosser for the State.

FULLERTON J.

This is an appeal from a judgment of the superior court of Benton county, convicting the appellant of the crime of rape.The assignments of error will be noticed in the order in which they are presented in the briefs.

The information charges that the appellant'in the county of Benton, state of Washington, on the 28th day of March, 1922, did, then and there being, unlawfully, feloniously and willfully and forcibly, overcoming her resistance, against her will and without her consent, have sexual intercourse with one Florence Sugars, a female child of the age of thirteen years, and not the wife of said'appellant.To this information the appellant demurred on the ground that more than one crime is charged therein.The demurrer was overruled, and this ruling the appellant makes the basis of his first assignment of error.

The statute(Rem. Comp. Stat. § 2435) defines the crime of rape as 'an act of sexual intercourse with a female not the wife of the perpetrator committed against her will and without her consent,' and provides that 'every person who shall perpetrate such an act of sexual intercourse with a female of the age of ten years or upwards not his wife: * * * when her resistance is forcibly overcome; * * * shall be punished * * *'The statute in a subsequent section( Id.§ 2436) makes it an offense to carnally know and abuse any female child under the age of 18 years not the wife of the perpetrator of the crime.It is the contention of the appellant that the information is a compound of these statutes, and is thus so far duplicitous as not to inform the defendant of the particular offense with which he is charged.But we are not persuaded that the contention is well founded.It is at once apparent, of course, that the provisions of the one section of the statute overlap the provisions of the other--that is to say, a single act may be a rape by force and a rape because of the age of the victim of the offense--but this circumstance does not prohibit a prosecution founded on either section of the statute.There is no such direct conflict that the one impliedly repeals the other, and in such cases the prosecuting officer has the right of election to proceed under either.Here the election was to proceed under the section containing the element of force, and we conclude that the prosecuting officer was within his privileges in so doing.

There had been a prior trial of the cause in Benton county, and between that time and the time of the present trial the appellant moved for a change of venue on the ground of excitement and prejudice existing against him in the county named.This motion was denied by the trial court, and error is assigned thereon.The application is based on affidavits, to which counter affidavits were filed.These indeed show that prejudice existed against the defendant among the persons residing in the vicinity of the crime, and perhaps also to some extent in the locality of the appellant's residence.But the question whether or not a change of venue will be granted rests so largely within the discretion of the trial court that it will only be reviewed for manifest abuse ( State v. Welty,65 Wash. 244, 118 P. 9); and we can find no such abuse to exist here.Moreover, we now have the benefit of the trial record, and this does not show that there was any unusual difficulty in obtaining an impartial jury.

The appellant through his attorney moved the court for an order requiring the prosecuting witness to submit to a physical examination of her person by a physician named in the motion.This motion the trial court denied, and its ruling thereon furnishes the basis for the third error assigned.The question suggested by the motion seems not often to have received the consideration of the courts.The only case that has been called to our attention where the question was actually involved is McGuff v. State,88 Ala. 147, 7 So. 35, 16 Am. St. Rep. 25.In that casethe court said:

'We do not doubt the correctness of the court's ruling in refusing to compel the infant to submit to an examination of her person by medical experts, on motion of the defendant made at the trial.Such a practice has never prevailed in this state, and if adopted as matter of right in all cases of prosecution for rape, the temptation to its abuse would be so great that it might be perverted into an engine of oppression to deter many modest and virtuous females from testifying in open court against the perpetration of one of the most barbarous and detestable of all crimes.We have repeatedly held that a conviction for rape may be sustained on the uncorroborated testimony of a prosecutrix, which excludes the idea of any necessity for corroboration by an examination of her person, either by medical experts or others.In Barnett v. State,83 Ala. 40, we accordingly held there was no error in the trial court's refusal to advise the jury not to convict, unless the testimony was corroborated by an examination of her person by medical or other experts, and that her refusal to submit to such examination would subject her evidence to discredit.'However forcible,'we observed, 'such a suggestion may be, under some circumstances, as an argument to a jury, the law does not require it.'It is true that, in divorce cases, the courts of this country, and of England, as also of Scotland and France, have exerted their jurisdiction to compel the parties to suits to submit to a surgical examination, or inspection of the person, in order to ascertain the fact of incurable impotence, when made the ground upon which the dissolution of the bonds of marriage is sought.This is limited to the necessity of the particular case, and is permitted only to prevent the miscarriage of justice.* * * So, in a recent case, cited by appellant's counsel, in an action of damages for permanent injury to the plaintiff's eyes, no medical expert having testified, it was held error in the trial court to refuse to make an order, on defendant's request, to compel the plaintiff to submit to an examination by a medical expert who had been called as a witness, and was then present in court ready to testify.* * * There are many similar decisions, made in modern civil actions for physical injuries, where the courts, in proper cases, have compelled the plaintiff, or injured person, to submit his person to the inspection of experts, in order to ascertain the nature and extent of such injuries.* * * The authority and soundness of these cases need not be challenged, although some courts in this country have declined to follow them.They are cases where the court had jurisdiction of the parties to a litigated case pending before it, who were invoking the assistance of its arm in aid of their civil rights.In this case, the witness is no party to any civil suit, but has been summoned at the instance of the state, to testify in a criminal prosecution against an alleged violator of the law.It may be well doubted, in cases of rape, and cognate offenses, whether the court has the power to make an order compelling the inspection of the private person of a prosecutrix, in the event of her refusal to submit to such examination.If such right exists at all, we should hold it to be a matter of judicial discretion with the trial court, to be exercised only in cases of extreme necessity, and not a subject of review on appeal to this court.'

In a more recent case from the Court of Appeals of California( People v. Preston,19 Cal.App. 675, 127 P. 660) a contrary view was expressed.But the question was not there before the court.What was said on the subject was said in answer to an objection to the sufficiency of the evidence to sustain a conviction; it being contended that the proof of the overt act ought not to be allowed to rest on the naked oral testimony of the prosecuting witness, where there were means...